EU Law - Treaties and Legislation / Europees Recht - Verdragen en Wetgeving
Dit document bevat een samenvatting van de stof van alle weken van European Law. Het bevat een samenvatting van de hoorcolleges, de werkgroepen, het boek en jurisprudentie. Alle stappenplannen worden in de samenvatting weergegeven.
Week 2
Freedom of services and freedom of establishment
Introduction to the internal market:
It’s the concept in which the EU wants to regulate its economic area. Definition in art. 26 (2)
tfeu. The freedoms of this week form a part of the internal market. The internal market shall
comprise an area without internal frontiers in which the free movement of goods, persons,
services and capital is ensured in accordance with the provisions of the treaties.
Two techniques of economic integration:
Negative and deregulatory integration: national rules that hinder cross-border trade are
prohibited at the EU level by law. Mutual recognition enhances this technique. The rules of
these freedoms prohibit national rules that conflict with the internal market.
Positive integration: it can be undesirable if a single European rule is applied in many ways
because it can vary in the way each member state interpret eu law. To solve this problem, the
system of harmonization was born. Through secondary eu law, different national approaches
are regulated by EU law -> directives.
Eu has regulated two issues that allow self-employed persons to move on a permanent and
temporary basis between member states -> freedom of establishment and the freedom to
provide services.
Freedom of establishment, art. 49 – 54.
This freedom shall include the right to take up and pursue activities as self-employed persons
and to set up and manage undertakings, in particular companies or firms ex 54 (2).
This provision highlights that the freedom of establishment contains the removal of barriers
for a person or company to carry out work on a permanent basis. ?>
The freedom of services, art. 56 – 62.
This freedom can apply in three situations where national rules are set to limit this freedom.
- When the service provider (natural person or a company) provides the services in
another member state.
- The service recipients receives the provided services in another member state
- The service itself transcends national borders.
Roadmap
These freedoms are intended to to protect self-employed against restrictions. A distinction
between self-employers and employers has been made. Employers are likely to fall under the
freedom of workers (week 4). On the exam it is thus important to check whether the case is
about self-employers or employers.
Example freedom of establishment:
- an Italian bank wants to establish in Brussel
- a Dutch doctor who wants to open a medical practice in France and works there on
permanent basis.
,Example The freedom to provide services:
- Schindler zaak: organising a lottery by providing advertising material and order forms.
- Josemans case: his coffeeshop needed to close, preventing him from selling drinks.
Selling drinks can be seen as a service.
Step 1: can EU law be applied?
We need to look at the personal scope and the material scope.
The personal scope determines which persons fall under EU law. Natural persons: they are
covered by EU law if they have a nationality of an EU member state. Legal person: if the legal
person has its corporate seat in an EU member state.
Situation falls under material scope if there is a cross-border element on the one hand and
an economic activity on the other.
Cross border element: several member states are involved.
Economic activity: occurs when activity take place in exchange for a certain remuneration
(vergoeding).
Joseman par 42: illegal goods like narcotic drugs are not covered by the law of the freedoms
and the prohibition of discrimination cannot be invoked.
Step 2: the definition of the freedom to provide servies and the freedom of establishment?
Answer is given in the Gebhard case!
Establishment: can be characterized as the participation ‘on a stable and continuous basis’
Par 25). Establishment has a more permanent character.
Services: according to art 57. Services are normally provided for renumeration. Services can
be seen as the pursuit of ‘activity on a temporary basis’ (par 26). We look at not only the
duration of the provision of the service but also of its regularity, periodicity, and continuity
(par 27). The provider of services may provide itself with certain infrastructure. He may have
an office despite the freedom of services being temporary.
NB: look at the duration of the situation in a given case; if its permanent its establishment
and if its temporary it’s a service. Always mention Gebhard.
Step 3: the services directive (sd) 2006/123 EC
if the sd applies, we will not go further into art. 49 and 56 tfeu but test the situation against
the provisions in the sd. To conclude that the fd applies we look at the personal and material
scope. Personal: art. 2(1) the personal scope is met when the natural person in question has
the nationality of a member state, or the company has its seat in a member state.
Material scope: art. 1 (1) the sd applies to the two freedoms. Some situations are not
covered by this article -> it does not affect rules of criminal law. It does not affect the exercise
of fundamental rights.
In article 2(2) there are situation mentioned where the sd should not be applied. Few
important situations are: financial services (banks), healthcare services, gambling services,
social services and services of temporary work agencies. If the sd cannot be applied you
should fall back on art. 49 and 56.
, In vastgoed appingedam we see that for the SD a cross-border element not is required.
Step 4a (1): in case the sd does not apply!
If the sd is not applicable you have to conclude that the articles you are using are 49 for
establishment and 56 for services. Both articles prohibit three forms of measures:
- Direct discrimination: when the measure is directly based on the nationality of a
natural person or company.
- Indirect discrimination: when nationality is not directly the basis for a measure, but
the effect is that natural persons or companies with a different nationality are hit
harder due to a neutral provision.
- A restriction: gebhard par 37, both articles prohibit a restriction. In a case where
there is no direct of indirect discrimination, but the freedoms are restricted, the act is
still prohibited.
Step 4a (2): can there be a justification for the forbidden behaviour?
Situation 1: in case of all forms of discrimination. Statutory justification are mentioned in art.
51 and 52 for establishment and for services (ex art. 62). These articles provide several
grounds for justifying the prohibited conduct:
- Official authority: the activities in question are connected to a state and its powers
(think of high-ranked diplomats or citizens).
- Public policy: protection against a threat that affects one of the fundamental interests
of society. Joseman par 62. Art.41 sd!
- Public security: this concerns issues of public safety
- Public health: this involves protecting the health of residents of member states.
To invoke on of these justifications certain requirements must be met:
- Harmonization: no harmonization is allowed when invoking a statutory justification.
- Proportionality -> suitable, necessary (there are no lesser restrcitve ways)and stricto
sensu (weighing of interests). According to par 70 of Joseman a measure is suitable if
the objective is pursued in a consistent and systematic manner.
Situation 2: in case we deal with indirect discrimination or a restriction based on par 37 of
Gebhard, the rule of reason can form a justification on top of the statutory justifications we
discussed above. Requirements:
- This contains no direct discrimination, only indirect or restriction!!
- There must be a reason of public interest. The aim must also be objectively
determined. An economic aim cannot be seen as an legitimate aim.
- Proportionality -> suitable, necessary and stricto sensu.
In case of indirect discrimination or a restriction always mention the statutory justifications
as well as the rule of reason exception.
Step 4b (1): in case the sd does apply (nog goed over inlezen bij vraag 2 wg)
In this step we distinguish establishment from service to determine if the measure in
question is violating eu law.
Establishment: art. 4(5) sd. Authorization schemes and requirements may be prohibited.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller kellyvansant. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $4.82. You're not tied to anything after your purchase.
